S M SHAHABUDDIN v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2892/2018

[2020] HKCFI 1004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2892 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

The applicant

1.  The applicant is a Bangladeshi national. He came to Hong Kong as a visitor on 13 December 2007 and was permitted to stay until 20 December 2007. Subsequently, he made several trips to the Mainland China and last returned to Hong Kong on 28 January 2008. He was permitted to stay until 4 February 2008. He overstayed and was arrested by police on 21 April 2008.

2.  On 23 April 2008, he was referred to the Immigration Department for investigation. He lodged a torture claim on 30 April 2008. He was interviewed by the immigration officer on 26 September 2016 for assessment of Torture risk, BOR 3 risk and Persecution risk as discussed below. At the interview on 26 September 2016, he was informed that BOR 2 risk would also be assessed under the Unified Screening Mechanism. Another interview was arranged to take place on 10 November 2016.

3.  However, he was indisposed on that day. He received a list of questions from the Immigration Department. He answered those questions with the aid of the duty lawyer. The assessment was made by reference to the evidence at the hearing on 26 September 2016 and his answers without a hearing.

4.  He claimed that if refouled, he would be killed by the members of the Bangladesh Nationalist Party (“BNP”) because he was targeted specifically for political retaliation and he was implicated in criminal cases as a result of being specifically targeted for political retaliation by the police and the Rapid Action Battalion in Bangladesh as he was a member of Awami League (“AL”).

5.  He said that he was a committed member of AL. On 21 August 2004, he attended a large rally in the capital city where senior leaders of AL attended. The rally was attacked and grenades were thrown, killing senior leaders of the party. He was not harmed. However, he discovered that he was falsely charged with throwing the grenades. He fled his home area to Chittagong and other parts of Bangladesh to stay with friends and relatives. He came to know that police had gone to his home to look for him. He left Bangladesh for India and came back, then departed for China. He finally chose to come to Hong Kong in December 2007.

The Director’s Decision

6.  The Director considered his application in relation to the following risks:

a.     torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By Notice of Decision dated 5 January 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 18 September 2018.

9.  By Decision dated 21 November 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

10.  The Board considered the applicant’s evidence. It came to the conclusion:

“45. Looking at all of these matters in the round, in particular the appellant’s poor oral evidence, the fact that he provides no support for his mere assertions when such support should be readily available, and his behavior since 2006, I conclude no credence whatsoever can be attached to any of the appellant’s claims.

46.     There appears to be no dispute the appellant is a national of Bangladesh, but beyond that I can make no positive findings of fact.”

11.  The Adjudicator came to the above conclusion having considered the evidence below.

a.     The applicant’s account of the events was extremely vague, with numerous lacunae, which he took no steps to fill [29].

b.     He said that there were arrest warrants against him, but he travelled in and out of Bangladesh on four separate occasions, passing through the immigration control on no fewer than seven occasions [30&31].

c.     He did not make any claim for international protection during his first three visits in Hong Kong. He did so only after he was arrested for immigration offences [32].

d.     His other evidence and his behavior only negatively contributed to the Adjudicator’s conclusions in relation to his credibility [33].

e.     He said that he was committed to AL’s political work, but he knew almost nothing about AL. He could not make a difference between AL and BNP [34].

f.     He was unable to give details to his account of activities he said he undertook for the party [35].

g.     He said that he took part in the 2004 rally where grenades were thrown, but he was unable to give any real description of the event [36].

h.     It is not logical to consider that the AL party would target him, the AL being the ruling party now [37].

i.     He could not give evidence to support that he was falsely accused of the grenade attack [38].

j.     He was unable to explain why he had not arranged for the evidence in support of his claim [39].

k.     The document he produced to show that he had been expelled from AL was not accepted because he was unable to tell the Adjudicator how he got it [41].

Application for leave to apply for judicial review

12.  He filed Form 86 dated 17 December 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, he relied upon the ground below:

1.     the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;

2.     the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

3.     he was confused at the appeal hearing;

4.     the Board did not notify him by phone as requested;

5.     the Board relied on hearsay evidence, outdated cases to speculate that he would be safe if he returned to Bangladesh;

6.     BOR 2 risk was not screened; and

7.     the Board had not made proper enquiry and did not understand his situation.

DISCUSSION

14.  The applicant appeared before me. He confirmed that he was free to tell his stories before the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision to him. His friend had explained the Board’s Decision to him.

15.  It is obvious that the Board had, for the reasons given above, not accepted the facts in support of his claim. Therefore, his claim has no factual basis.

16.  I put the above findings to the applicant and asked for his comments. He did not give me any constructive comments to challenge the findings.

17.  The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held:

“14. The Director and the Board alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.”

18.  The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant does not have the absolute right of free legal representation at every stage of the proceedings.

19.  He has confirmed that he had no problem with the hearing bundle for the appeal as his friend had explained it to him.

20.  BOR 2 risk was screened by the immigration officer without a hearing. The immigration officer was entitled to do so as there had been a hearing on the other risks on 26 September 2016. The immigration officer might simply make the assessment if he had no further questions for the applicant.

21.  Under section 37ZB of the Ordinance, the immigration officer has the power to require information from the applicant. Under section 37ZB(1)(b), the immigration officer has to have an interview with the applicant:

(1) After a completed torture claim form is returned by a claimant, an immigration officer—

(a)     may require the claimant to provide the immigration officer with any information or documentary evidence related to the claimant’s torture claim that the immigration officer specifies; and

(b)     must require the claimant to attend an interview to provide information and answer questions relating to the claimant’s torture claim.

22.  The immigration officer was not obligated to hold another interview with the applicant under section 37ZB(1)(b) of the Ordinance. I find that there are no exceptional circumstances, for which the applicant can apply for judicial review of the Director’s Decision to this Court.

23.  It is obvious that the Board refused his appeal on the basis that he had no facts in support of his claim. As such, all his grounds are irrelevant.

24.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

25.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1